U.S. Supreme Court Issues Partial Ruling Regarding Indiana Abortion Law

The Supreme Court today came to a compromise regarding facets of an Indiana abortion law that requires controlled disposal of “remains” but declined to take a position on a provision prohibiting women to opt for a procedure because of the sex, race, or prospective disability of the fetus, The Washington Post reports. Justices cited a previous ruling from 1983 maintaining that a state has a “legitimate interest in proper disposal of fetal remains,” determining that Indiana’s law is rationally related “even if it is not perfectly tailored to that end.” The court determined that it would not weigh in on the second issue until it is properly adjudicated by lower courts, noting that the 7th Circuit is the only appeals court to have considered the matter. The 7th Circuit previously ruled that provision is unconstitutional based on the fact that “nothing in the Fourteenth Amendment [of the Constitution] or Supreme Court precedent allows the state to invade this privacy realm to examine the underlying basis for a woman’s decision to terminate her pregnancy.” Justices Ruth Bader Ginsburg and Sonia Sotomayor said that they would have upheld the 7th Circuit’s decision; however, Justice Clarence Thomas dissented calling the practice “eugenic abortions.”

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Court to Consider Whether Shoplifting from Walmart Can be Considered Burglary

The Tennessee Supreme Court will consider whether shoplifting from Walmart stores more than once can be considered felony burglary instead of a shoplifting misdemeanor, the Knoxville News Sentinel reports. This comes after a policy instituted by Knox County District Attorney General Charme Allen in 2016, which seeks to curb multiple offenses and was adopted by several other counties in the state. The Court of Criminal Appeals recently ruled that Allen’s policy is sound, further stating that once a shoplifter has been banned from the store in writing, consent of public patronage has been revoked. Criminals Appeals Judge Camille R. McMullen wrote a dissension saying: “Unlike an individual who owns a building closed to the public, a retail store such as Walmart does not have its privacy invaded and is not terrorized or personally violated when a banned individual commits the offense of shoplifting or theft within one of its stores … by charging individuals in this way, prosecutors are creating an enhanced penalty for shoplifters and petty thieves. The court has not yet set a hearing date.

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Warren, AOC Send Letter and Release Video Questioning Mnuchin’s Role in Sears Bankruptcy

Presidential candidate Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez (AOC) wrote a letter to Treasury Secretary Steven Mnuchin and released a video last week detailing a series of questions for Mnuchin regarding his advisory role to former Sears CEO Eddie Lampert during the downfall and eventual bankruptcy of the company, The Washington Post reports. Mnuchin was college roommates with Lampert and served on the boards of both Sears and Lampert’s hedge fund, ESL Investments. Mnuchin, Lampert and other board members have been named in a lawsuit filed last month by Sears’ unsecured creditors on behalf of Sears. The suit accuses them of transferring billions of dollars from the company, as it closed stores and cut staff, in order to benefit Lampert, his hedge fund, his real estate investment firm and other insiders. After Sears filed for bankruptcy, its two pension plans were handed over to the Pension Benefit Guaranty Corp. (PBGC), overseen by Mnuchin and two other secretaries. Warren and AOC inquire into the ethical obligations and current status of Mnuchin’s recusal requirements from PBGC’s actions related to Sears. Watch the video and read the full story here.  

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TBA Recap: Litigation & Appellate Forum 2019

The TBA Litigation Section recently held its annual forum on April 18 in Nashville at the Tennessee Bar Center. The section collaborated with the Appellate Section to provide CLE sessions that benefit members of both sections. The TBA would like to thank program producer and Section Chair Mary Taylor Gallagher as well as the entire executive council for their time and assistance in planning this program. 

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Article Explores SLAPP Litigation in the #MeToo Era

A recent Nashville Scene feature puts a local lens on the state of Strategic Lawsuits Against Public Participation (SLAPP) and their deployment during the #MeToo movement. The piece follows the story of a Nashville musician accused of sexual assault who sued one of his accusers, and how anti-SLAPP legislation signed by Gov. Bill Lee this year might change such litigation in the future.
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Davidson Courts Soliciting Comments on Proposed Local Rules Amendments

Davidson County Courts are proposing amendments to the Local Rules of Practice, and soliciting comments in accordance with Tennessee Supreme Court Rule 18. The deadline for submitting comments is June 24. The public comment notice and the proposed amendments to the local rules are available on the websites of the Clerk and Master and the Circuit Court Clerk. Rules proposals relative to electronic filing in Davidson County Chancery Court and Davidson County Circuit and Probate Courts are also available on the respective clerks’ websites.
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Tennessee AG Sues Endo Pharmaceuticals for Role in Opioid Crisis

Attorney General Herbert H. Slatery III today sued Endo Pharmaceuticals and Endo Health Solutions Inc. for making unlawful and false claims about the safety and benefits of its opioid products. The state’s lawsuit, filed in Knoxville, alleges Endo violated the Tennessee Consumer Protection Act and contributed to a devastating public health crisis in Tennessee. The allegations in the 180-page complaint detail how Endo deceptively marketed its opioid products as being less addictive and more effective than others on the market. The complaint alleges that Endo also knew the dangers of its opioid products and failed to clearly disclose those risks.
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Zillow Class-Action Suit Regarding RESPA Violations to Proceed

The class-action lawsuit filed against Zillow regarding its “co-marketing” program and whether it violated federal anti-kickback laws will proceed as planned, The Washington Post reports. The suit, filed in September 2017, alleges that the company ran afoul of the Real Estate Settlement Procedures Act (RESPA) by allowing lenders share advertising fees with real estate agents — up to 90 percent initially — effectually allowing the lenders to receive leads on active buyers. The Consumer Financial Protection Bureau (CFPB) in 2017 notified Zillow that it was being investigated regarding the alleged violations, to which the company attempted to negotiate with the bureau; however, the case was dropped when the Trump Administration appointed its new CFPB director. Judge John C. Coughenour of the U.S. District Court in Seattle denied Zillow’s motion to dismiss saying: “the court can draw a reasonable inference that Zillow designed the co-marketing program to allow agents to provide referrals to lenders in violation of RESPA.” A trial date has not been set.

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Franklin-based Firm to Pay $17 Million in Healthcare Fraud Settlement

Franklin-based Acadia Healthcare will pay $17 million in what the Department of Justice says is the largest health care fraud settlement in the history of West Virginia, the Nashville Post reports. The settlement resolves a lawsuit that accused the behavioral health care company of defrauding Medicaid of $8.5 million through a lab testing scheme in seven of its drug addiction treatment centers in West Virginia. As part of the settlement, Acadia and its chain of clinics have entered into a five-year corporate integrity agreement with the U.S. Department of Health and Human Services that requires the company to maintain a compliance program, implement a risk assessment program and hire an outside organization to review Medicaid claims.
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Your TBA Free CLE Credits Expire June 30

TBA members receive three hours of free CLE programming. Your credits expire June 30 for the current bar year. You may apply them to any available course here or donate them. Members can use this credit to cover all or part of the cost of live programs or on any online CLE program. (The course does not have to take place by June 30.)
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SCOTUS Rules TVA Doesn’t Have Automatic Immunity from Some Lawsuits

The U.S. Supreme Court ruled this week that Tennessee Valley Authority and its contractors can’t invoke governmental immunity in lawsuits over injuries tied to power production, Knoxnews reports. Justice Elena Kagan wrote that though the TVA was created for the governmental purpose of building dams and helping farmers, it doesn't look like a government agency these days. “The rates it charges, along with the bonds it issues, bring in over $10 billion in annual revenues, making federal appropriations unnecessary," Kagan wrote. The Supreme Court sent the case back to the appeals court to review whether the TVA is able to claim limited immunity because it was carrying out a governmental function when the accident occurred. 
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Executor of Sedley Alley's Estate Says She Has the Right to Review Crime Scene Evidence

The daughter of Sedley Alley, who was convicted of raping and killing Lance Corporal Suzanne Collins in 1985 and ultimately executed for the crime, yesterday asked a judge in Memphis to allow review of evidence from the murder scene to provide closure on the crime once and for all, The New York Times reports. April Alley maintains that as executor of her father’s estate she is entitled to continue the pursuit of justice and asks that preserved evidence found at the scene — including the victim’s underwear, a pair of red briefs apparently worn by the attacker and a 31-inch tree branch — be tested for DNA and matched against her father’s that was harvested when he was still alive. Alley was initially denied review of the evidence for DNA material, a request prosecutors claimed was a stalling maneuver; however, five years after his execution, the Tennessee Supreme Court concluded the lower court’s denial was errant. 

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Tennessee AG Considers Taking Fight for Lawsuit Cap to U.S. Supreme Court

After a federal appeals court ruled that a Tennessee law capping punitive damages in lawsuits at $750,000 is unconstitutional, Tennessee Attorney General Herbert Slatery is considering taking the battle to the U.S. Supreme Court, Knoxnews reports. The article also features stories from Knoxville business owners who are asking Slatery to side with victims of business wrongdoing and let the law die, after they say they were bullied by a company they sued over the death of their son.
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5 New Job Postings on TBA’s Joblink

See who is hiring in Tennessee. Recent job postings this month offer opportunities in litigation, real estate, health law and more. See full listings or post positions in your firm on TBA’s Joblink.
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TBA Convention Kicks Off TOMORROW!

The big week is finally upon us: The Tennessee Bar Association’s Annual Convention begins tomorrow, June 12. This year’s Convention is chock-full of even better programming, exhibits and fun than last year! Look forward to:

  • Free Access to 9 Hours of CLE, including the Bench Bar Program, co-sponsored by the Tennessee Judicial Conference
  • Opening welcome reception
  • Bench Bar Luncheon (featuring keynote speaker, Ken Starr)
  • Law School and General Breakfasts
  • Lawyers Luncheon (featuring special honor for Sen. Lamar Alexander)
  • Thursday night joint reception sponsored with TLAW and TABL
  • Thursday night Dinner/Dance Party featuring My So-Called Band
  • Friday night TBALL/YLD Party
  • Access to activities and programming designed for well-being including massages, contemplative space and more.
  • Access to TBA's sponsorship hall to meet with exhibitors, participate in our special TBA Wellness Corner and win prizes.
• QUESTIONS: Just email to get help.
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Brentwood Based Assisted-Living Conglomerate Sued by Residents

The nation’s largest assisted-living provider, Brentwood-based Brookdale Senior Living Inc., is being sued by eight disabled and elderly residents who claim the company is responsible for financial abuse and violations of the Americans with Disabilities Act, The Mercury News reports. The plaintiffs maintain in the complaint that the organization failed to provide services listed in its initial agreement and fostered “humiliating, frustrating and hazardous situations on a daily basis.” The provider is no stranger to the courtroom, being party to numerous lawsuits over the years, including one case in which an elderly resident was killed by an alligator. The lawsuit will seek class-action status for the estimated 5,000 residents in Brookdale facilities throughout California.

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Legal Battle Over Toxic Waste in Tennessee Town Heats Up

A rural community in west Tennessee continues its fight against a waste management company regarding a toxic substance that has polluted area water sources and devastated local vegetation, USA Today reports. In 1999, the town of Bath Springs contracted North Carolina corporation Waste Industries to assume operations of its landfill that was used for local waste in Decatur County. Subsequently, under new management, the landfill began to accept “special waste” characterized as being "difficult or dangerous" to contain, which is more profitable than household trash but when exposed to elements excretes an ooze called leachate that finds its way into the soil and ultimately the water supply. Waste Industries later announced plans to abandon the landfill and sued the county, maintaining the municipality was derelict in its responsibilities to “to provide for the disposal and treatment of the leachate” and is in breach of the initial agreement. The county filed its own lawsuit against Waste Industries, alleging violations of federal clean air and water acts. The lawsuit against the county is scheduled for a status conference on May 10 in Tennessee Western District Court, Judge S. Thomas Anderson presiding.

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This Thursday: Litigation & Appellate Forum

It's not too late to join your colleagues for the 2019 Litigation Forum on April 18. This year’s event will include a Magistrate Judges panel, a session on social media in client intake, a review of the Business Court and much more. Earn up to four hours of general CLE and one ethics hour.
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Mediation Between Black Farmers Group and Seed Company Hits Impasse

After four months, mediation between the $3 billion-valued Stine Seed Company and a collaborative of five black farmers affiliated with the Memphis-based Black Farmers and Agriculturalists Association has ended without resolution, The Commercial Appeal reports. "No new court date has been set," Patricia Rogers, a spokeswoman for the Memphis farmers' group wrote in a media alert. "The black farmers could be headed for a trial with the billion-dollar seed giant." Filed in April 2018, the group's lawsuit alleges fraud and discrimination involving soybean seeds a Stine representative sold the farmers.
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Litigation, Appellate Practice Team Up for Power-packed Program

The TBA's Litigation and Appellate Practice Sections are collaborating to offer a full-day CLE containing essential and useful material for litigators and appellate practitioners alike. This year’s program will take place April 18 at the Tennessee Bar Center in Nashville. It includes a session on appellate procedure, a presentation on social media issues and client intake, a dual credit legal technology hour related to hold and preservation systems, a session discussing ethical issues in brief writing and brief strategies, both trial and appellate as well as a presentation on the reasonable certainty requirement for calculating damages. Earn up to three hours of general CLE and two hour of ethics CLE. Secure your spot by registering today!

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Shelby Judge Reprimanded For Delayed Rulings

Shelby County Circuit Court Judge Robert Weiss has been reprimanded for unreasonable delays in rulings on two cases, the Daily Memphian reports. The public reprimand, issued in January by the Tennessee Board of Judicial Conduct, found that Weiss took up to five years to make a ruling in one case and three years in another. Reprimands of this nature from the board are somewhat rare, with Weiss being the only judge to receive one so far this year.

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Help4TNDay Kicks Off Saturday

Tennessee lawyers are invited to participate in Help4TNDay activities throughout the month of April. Events will bring attention to the ongoing need for free and low-cost legal services and highlight the groups that provide these services to disadvantaged Tennesseans. Opportunities include volunteering to help clients in need through Tennessee Free Legal Answers (TFLA) or at a local legal clinic. The events kick-off this Saturday with a statewide virtual legal clinic, where attorneys across the state will answer questions on TFLA from noon to 2 p.m. Simultaneously, the TBA will host an on-site TFLA Clinic and Luncheon in Nashville. To participate in the TBA event, contact Liz Todaro. Help4TNDay is a joint effort by the Tennessee Supreme Court Access to Justice Commission, the Administrative Office of the Courts, Tennessee Alliance for Legal Services and the Tennessee Bar Association. 
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Lawsuit Claims Murfreesboro Facility at Fault for Man’s Burning Death

The family of a man who was burned alive at a veteran’s affairs facility is suing multiple people associated with the facility, the Daily News Journal reports. John Daniels Carothers was arrested and accused of murdering Robert "Bobby" Miller," a black man, and later sent a letter to a white supremacist group admitting to the crime. Robert Miller Jr. and Vernice Miller are suing multiple people after the March 2018 death of their son, including Ida Frazier and Annie Young, sisters and co-owners of Frazier Young Supportive Living. The wrongful death suit names employees of the facility, Carothers and Ten Broeck Healthcare, a private mental health institution in Cookeville that placed Miller and Carothers in the Frazier Young residence.
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Register Now: 31st Annual TBA Health Law Forum

Register now for the 31st Annual TBA Health Law Forum and the 19th Annual Health Law Primer to take place this October in Franklin The must-see, must-do event for Tennessee health law attorneys, this forum features timely topics designed to up your game and keep you on top of trends in the area. Presentations in this year’s program will include: cyber threats in health care, surrogate decision making, updates with TennCare, cloud-based vendor agreements, reps and warranties, legislative updates, antitrust concerns and much more. Don’t sleep on this opportunity to learn from seasoned practitioners while networking with top players in the field. Here are the key details:
Health Law Primer (introductory program)
When: Wednesday, Oct. 16
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
Health Law Forum
When:  Thursday, Oct. 17 – Friday, Oct. 18
Where: Embassy Suites Hotel, 820 Crescent Centre Drive, Franklin
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Purdue Pharma, Oklahoma Reach Settlement, Praised by AG Slatery

Oklahoma has reached a landmark settlement with Purdue Pharma regarding its role in the opioid crisis, The Washington Post reports. This is the first such settlement in the more than 1,600 lawsuits faced by the drug maker, including the case in Tennessee where Knox County Circuit Court Judge Kristi M. Davis struck down Purdue’s motion for dismissal. Tennessee Attorney General Herbert Slatery released a statement praising the action and reaffirmed the state’s commitment to holding Purdue and other manufacturers accountable for possible violations of the Tennessee Consumer Protection Act. In the Oklahoma settlement, Purdue will pay $102.5 million to establish a new foundation for addiction treatment and research, provide $20 million worth of treatment drugs and cover about $60 million in litigation costs.
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